Maybe you’ve had it with arguing with your neighbor about the fence separating your properties, or perhaps not so cute “Spot” has left his calling card on your lawn once too often. These and other matters can escalate to the point where neighborly good will and patience are exhausted and the only remedy left for reasonable adults is to initiate a civil court action. In reality, going to court is often an expensive, time consuming “role of the dice,” and in fact, it is not the only remedy left to reasonable people.
Consider mediation. The Nashville Conflict Resolution Center (NCRC) offers free community dispute resolution and has a highly successful track record in resolving community disputes through the use of trained mediators. In 2009, over 90% of all mediations conducted at NCRC reached agreements! Here are some of the benefits of using mediation over litigation to resolve community disputes:
- Mediation is confidential and eliminates adverse publicity. Though there are a few exceptions, nothing said or noted during mediation can be used against a party later in court. By contrast, litigation creates a public record.
- Mediation is much less expensive then litigation. Protracted litigation involves tremendous costs in stress, attorney, and discovery fees. Legal or other representation is optional (not required) in mediation if the parties so desire.
- Mediation is less time consuming then litigation. Many mediated disputes reach agreement in one or two sessions.
- Mediation is low risk and does not preclude a person’s “day in court” if s/he desires to pursue litigation after mediation. In mediation, parties retain total control over their agreement. And unlike binding arbitration, the parties do not lose any rights that may be provided under contract law or other law. There is no determination of liability in the process. Mediation avoids the uncertainty of a court-determined outcome and the unpleasant consequences of a judgment being issued against one of the parties while it also preserves the right to pursue the case through the courts if necessary.
- Mediation is informal. Other than a few “ground rules” designed to help everyone be respectful and be heard, the parties and mediator can be as informal as they choose. Litigation polarizes the parties and cross examination is focused on pointing out weaknesses rather than initiating dialogue.
- When ongoing relationships are important, as for example, in the case of parties who wish to raise children, or continue a business/community relationship, mediation provides an opportunity to resolve a dispute in a non-adversarial way so that important relationships are repaired and preserved and future communications are improved.
- Mediation can be fast. Because timing is in the control of the parties, parties can reach and implement an agreement at any time.
- Mediation can be slow. Sometimes people need time to think things over and digest ideas. As long as the parties are moving forward, mediations can be scheduled over several sessions, thus enabling all parties to sort out options and consider solutions.
- Mediation is flexible and can be used before, during, or after a case has been filed in court. The mediation process encourages parties to address root causes of conflict and to address those causes through every means conceivable. The parties may also consider options or strategies that would not be available to a court. Mediation enables parties to consider issues beyond money.
- Mediation is Successful! A 2008 study involving 2,054 cases as reported in the Journal of Empirical Legal Studies found that when cases were adjudicated, plaintiffs committed decision error, receiving an award less than or equal to the last offer made by the defendant, in 61.2 percent of cases. Defendants committed decision error in 24.3 percent of cases.1 Over 86% of mediated cases settle! An independent national survey showed 96% of all respondents and 91% of all charging parties who used mediation would use it again.
1 Kiser, Randall L., Maring A. Asher, and Blakeley B. McShane, “Let’s Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations.” Journal of Empirical Legal Studies. Sept. 2008: Vol. 5, Issue 3. 551-591. Print.